Academic journal article Journal of Criminal Law and Criminology

Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases

Academic journal article Journal of Criminal Law and Criminology

Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases

Article excerpt


In order to estimate the prevalence of the entrapment indicators developed in Part II, this Part describes two new databases created by the authors. Previous databases of terrorism cases are not adequate for the purposes of this Article, since they are outdated and either underinclusive or overinclusive. One of the most comprehensive databases, including both convictions and open cases, was compiled by journalist Trevor Aaronson and others, in conjunction with the University of California-Berkeley's Investigative Reporting Program. (211) This database, which was published on the Mother Jones website, built on the DOJ's list of terrorism-related convictions, adding more recent convictions that fit the DOJ's inclusion criteria. The database developed for this Article builds on Mother Jones's by including more recent cases, excluding cases that are unrelated or only loosely related to terrorism, and adding cases not originally included in the database.

Mother Jones's database ends in 2011. We updated it by conducting news searches for terrorism arrests in Google News and LexisNexis. This ensured that any terrorism prosecution that began in or after 2011 would be included, as long as it was covered in at least one story in the news media. We also drew on more recent lists of terror attacks and convictions, such as those by the New America Foundation and Charles Kurzman, to avoid missing any cases. (212) The advantage of using the New America Foundation's database is that, unlike Mother Jones's, it included cases of right-wing terrorism. However, we excluded those cases in the New America Foundation's database in which the alleged perpetrator died before being prosecuted for the offense. Successful attacks were included, as long as the defendant survived the attack and was charged with an offense.

We excluded a number of cases that were included in the Mother Jones database. Since that database built on the DOJ's list of terrorism-related cases, it includes numerous cases with no apparent connection to terrorism, or which are only loosely or speculatively related. The DOJ even classified a case in which the defendants stole a truck full of com flakes as terrorism-related, perhaps based on an initial belief in the investigation that the defendants (who have Arabic names) may have had some connection to terrorism. (213)

Such cases were not included in our database, since the purpose of the database is to analyze terrorism convictions and prosecutions in progress, rather than any cases with speculative or tangential connections to terrorism. However, if an individual was charged with a terrorism offense but ultimately was only convicted of a nonterrorism crime, the individual was included in the database. Serious crimes apparently motivated by radical ideologies, such as attacks on police by antigovernment extremists, are included as well, even if authorities did not charge the individual with an offense containing the word "terrorism."

The reason for this is that the database is meant to include all cases involving crimes that fall within current definitions of terrorism, regardless of whether the specific charges contained references to terrorism as such. (214) A prosecutor may decide whether to employ a terrorism statute, as opposed to other statutes covering the same crime (such as arson or murder statutes), based on a number of considerations, such as the perceived seriousness of the crime, the desired sentence, the predicted difficulty of proving the elements of the offense, or a personal belief that a particular type of crime deserves to be called terrorism. (215) Omitting cases in which prosecutors did not employ terrorism statutes would arbitrarily restrict the scope of the database.

We also added a number of cases that were not in the DOJ's original list and thus were also missing from the Mother Jones database. Curiously, although the government has commonly labeled actions carried out by Animal Liberation Front and Earth Liberation Front as "ecoterrorism," (216) ALF- and ELF-related convictions do not appear in the DOJ's database. …

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